NATHAN NEWMAN

Loss for Gay Rights

Back in 1986, in a case called Bowers v. Hardwick, the Supreme
Court upheld as constitutional a law that made gay sex illegal in
Georgia. On June 26, the Supreme Court reversed that decision,
striking down an antisodomy law in Texas as unconstitutional. The
surprising majority decision by usually conservative Justice Anthony
Kennedy was an elegy to the privacy and dignity of personal
relationships among all citizens, including gays targeted by the
law.

It was also, despite appearances, probably a bad result for gay
rights.

Activist decisions by courts rarely help progressive causes.
Judicial activism achieves very little but merely empowers the biases
of elite judges, demobilizes progressives in favor of litigation, and
encourages electoral backlashes that erase far more gains than our
won in the courts.

Gay rights was already winning: The fact is that today, whereas
half the states had anitsodomy laws similar to Georgia in 1986, only
13 states still have such laws. This is an issue that is being won
legislatively and where the laws are rarely enforced even in most
states where the laws are still on the books. In Dade County, where
the first major gay civil rights ordinance was voted down back in the
1970s, a similar ordinance was approved at the ballot this past year.
Civil unions and benefits for domestic partners are being approved by
state legislatures.

The antigay activists are losing their majority at the ballot box
and the message is that they are a moral minority.

But with the Court intervention, the Right will be able to
position themselves as "defenders of democratic choice" as if they
would prevail but for an undemocratic court decision. And they will
benefit from a backlash in attacking other gay issues, where they
were losing before.

The case of gay marriage: Look what happened with gay marriage.
There was no rightwing legislative agenda to ban it before a Hawaiian
Supreme Court upheld it as a constitutional right in that state.
Suddenly states across the country rushed to ban something that was
not even an active issue previously.

And the fact that the bans were put in state constitutions will
make it just that much harder to pass gay marriage when we are able
to build majorities to support the idea in coming years, because now
we will need to pass new constitutional amendments rather than just
majority legislation.

The Hawaii court decision gained little, since there are ways to
override court decisions, but the backlash cost the movement probably
years in pushing forward full gay marriage. If the conservatives take
advantage of backlash to move forward on a national amendment to bar
gay marriage, the result could be decades of delay in gaining full
equality for gays.

Why judicial activism fails progressives: For those who note that
conservatives happily pocket their gains from rightwing judicial
activism, the hard fact is that what works for the rightwing does not
work for progressives. Most conservative judicial activism reinforces
the power of the already economically and politically powerful, so
it's hardly surprising that their increased power from such decisions
overwhelms any backlash from progressives hurt by it.

Which goes to why judicial activism is such a bad thing for
progressives overall. In the history of the US, from early in the
19th century until 1937, most judicial activism was in support of
conservative property interests, including the slavery decisions
which were framed in terms of property rights. And because those
decisions reinforced the power of the already powerful, conservative
judicial activism was very effective. More recent conservative
activism works similarly. If you already have dominant economic or
social power, judicial activism can just reinforce your
non-democratic power to manipulate the system.

The problem for progressives is that their ideal judicial
activism supports the rights of those without already existing power.
Which means that there are often ways for conservatives mobilized by
those decisions to circumvent them when progressives have not yet
developed the full majoritarian support to defend them.

Take the example of the civil liberties decisions protecting the
rights of defendants decided by the Warren Court in the '60s. The
goal seemed to be to end the arbitrary oppression of the criminal
system against the poor and powerless.

But what is the result decades later? An explosion of the prison
population due to an expanded list of crimes, especially tied to the
drug war, that lead to a massive expansion of poor and minority folks
in prison or controlled by the probation system. At a time of
legislative gains for the poor through the Great Society, the Warren
Court decisions fed a false sense that the system protected the
guilty, helping feed a backlash of "anti-crime" legislation -- fed
by powerful corporate interests benefiting from the prison industry -
that has devastated poor communities.

How the courts derailed the ERA: And where progressives are
building majority power, a partial court decision can derail further
more far-reaching gains. It's worth considering why the Equal Rights
Amendment (ERA) failed in the 1970s. At least one reason is the
Supreme Court jumping in with partial (but not full) constitutional
protection for women in some early 1970s cases. Once some protection
was passed, it lessened the energy supporting the ERA, so a
short-term Supreme Court victory became a far larger constitutional
defeat. This interference with a mass democratic mobilization around
the ERA was not unremarked by the Court members themselves. As
Justice Powell argued in his concurrence in a key early 70s case
called Frontiero, which established some of the basic protections for
women under the Constitution:

The Equal Rights Amendment, which if adopted will resolve the
substance of this precise question, has been approved by the Congress
and submitted for ratification by the States. ... By acting
prematurely and unnecessarily, as I view it, the Court has assumed a
decisional responsibility at the very time when state legislatures,
functioning within the traditional democratic process, are debating
the proposed Amendment.

And partly because the Court acted, what looked to be a rapid and
overwhelming approval of the ERA became a defeat as the rightwing
rallied against what were seen as antidemocratic Court decisions.

Progressives are actually winning on gay rights issues, slowly at
times but surely. A Court decision broadly overturning Bowers will
actually change little substantively, but could cost progressives
politically in a host of ways.

It's hard to turn down a short-term win on a matter of justice
through the courts, which is why both Right and Left can't help
praising judicial activism that helps them. But it rarely means
anything without majoritarian support in the long-term. And if you
have majority support for your issues, you don't need the courts.

Nathan Newman is a labor lawyer, longtime community activist,
and author of the recently published book Net Loss [Penn State
Press] on Internet policy and economic inequality. Email
nathan@newman.org or see www.nathannewman.org.